Scottish Court of Session Decisions

By antenuptial contract of marriage, dated 16th December 1831, between George Murray, merchant in Tain, and Miss Elizabeth Aird, with advice and consent of her father Gustavus Aird, Mr Murray bound and obliged himself, his heirs, executors, and successors, to pay over and assign before Whitsunday 1832, to certain personsnamed as the marriage-contract trustees, £1000, to be laid out and secured by them on heritable security, British funds, or otherwise, and to be held in trust for behoof of the spouses and their children, “to be paid and divided in manner after mentioned.” The contract then provided that the interest of the sum should be paid to Mr Murray during all the days of his life, and that if the wife should be the survivor it should be paid to her while she remained a widow, for her own maintenance and the upbringing of any child or children who might be born of the marriage. Mr Murray then bound himself, “over and above the said sum of £1000 sterling, to provide and secure and convey and make over at his death the just and equal half of the whole heritable and moveable property of every denomination which he shall conquest and acquire by purchase, succession, or otherwise, to the heirs and bairns of the said intended marriage, after deducting a proportional part of his debts corresponding to the said conquest.” The manner in which the funds were to be divided among the children of the marriage, if more than one, was thus provided for—“And it is hereby specially provided and declared, that it shall be lawful to and in the power of the said George Murray senior, at any time of his life, and even on deathbed, to divide and proportion the foresaid provision of £1000 sterling, including the above conquest, at such time and in such way and manner among his said children, if more than one child, under reservation always of the liferent right of the said Elizabeth Aird, as he may see fit, provided the said provision and conquest be truly all divided amongst them; but failing of any such division, the said provisions shall belong to and be divided among the said children equally, share and share alike,” the lawful issue of a child dying before the provision should be paid or payable to have their parent's share divided among them. In consideration of these provisions, the wife, on her part, besides discharging her legal rights, made a general conveyance to the trustees of all the property then belonging to her or which should belong to her during the subsistence of the marriage, “excepting only the provisions conceived in her favour in manner before and after specified,” and her father Mr Aird bound and obliged himself to make payment to the trustees on the death of his wife, who was declared liferenter of these funds if she should happen to survive him, of the sum of £500, and of the third share of the free residue of the executry of his estate after crediting the sum of £500, as also of all right of succession which might accrue to Mrs Murray in the event of any of her father's executors predeceasing her. These provisions, when the time of payment arrived, were to be laid out on security by the trustees, and the interest was to be paid to the spouses in liferent, the principal to be divided by Mr Murray among the children of the marriage in any way he might deem fit, and failing such division equally among them. the lawful issue of a child dying before such division to receive their parent's share.

There were born of the marriage one son, Gustavus Aird Murray, and four daughters, Mrs Sarah Robertson Murray or Campbell, who predeceased her father leaving children, Mrs Georgina Murray or Vass, Mrs Williamina Murray, and Miss Elizabeth Murray. Mrs Campbell was married in 1857, and her father was a party to her marriage-contract. In it he bound himself to settle on Mrs Campbell, and in the event of her decease on her child or children, if any, “a share of his means and estate, heritable and moveable, to be payable at his death, such share being at least equal in amount or value to the share of his means and estate to which any of his other children shall be entitled. He reserved power by any will or settlement to restrict Mrs Campbell's right to a liferent, and to secure the capital to her children. This provision was declared to be in full satisfaction to Mrs Campbell of legitim, executry, and every other claim competent to her from his estate at his death, or from the goods in communion between him and her deceased mother.

Mr Murray's other married daughter, Mrs Vass, was married in 1868, and in her contract, to which also he was a party, Mr Murray bound himself to settle on the spouses in conjunct liferent, and on the surviving child or children, if any, in fee, a share of his means and estate, heritable and moveable, payable at his death, “not less in amount or value than the share to which any of his other children or their issue shall be entitled.” In this contract also, as in that of Mrs Campbell, the provision made by Mr Murray was declared to be in full to Mrs Vass “of legitim, executry, and every other claim competent to her from his estate at his death, or from the goods in communion between him and her deceased mother.”

Mr Murray never made payment to his marriage-contract trustees of the sum of £1000 which he bound himself to pay in his marriage-contract. In 1861, on the death of Mrs Aird, he received

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the provisions made for him by his wife's father in that contract, amounting in all to £1445. A portion of this only was distinguishable from his other funds at the time of his death. He died in 1879, being predeceased, as already mentioned, by Mrs Campbell, and survived by his other children. The value of his estate at the time of his death, heritable and moveable, slightly exceeded £29,000. The heritage was of the value of about £1734. He left a trust-disposition written by himself and several codicils relative thereto. By the trust-disposition he declared it to be in the power of the trustees named in the deed to realise his property, heritable and moveable, and to invest it in the funds, in Colonial guaranteed stocks, or on landed security, at their discretion. The deed then proceeded—“As I propose that the different members of my family, viz., Sarah, now Mrs Alexander Campbell, Sydney, N. S. Wales; Gustavus (presently a squatter in N. S. Wales); Williamina, Elizabeth, and Georgina (the three latter living with myself unmarried—say in all four daughters and one son), do participate equally of my estate, but subject to the following restrictions—say to Gustavus, my son, how soon it is practicable and convenient to my executors, that his portion or share of my estate, so far as realised, be paid over to him, as it is possible that his future prospects in life may be advantaged by his being put in possession of his share; but it is to be understood that any advances which may have been made to him by me during my lifetime, which are recorded in my investment record book, are to be deducted from his portion or share of succession, less his share of the value of the heritable property, until the trustees see fit to convert it into money, but until then he is to be paid his portion of the annual return therefrom. As to the portions effeiring to my daughters surviving at my death, they individually are only to be paid the interest arising, or rents of houses if not disposed of, from the residue of my estate after Gustavus's share is paid to him, annually, i.e., paid to each in two equal instalments once in the six months, say the income accruing from their respective portions of capital as separate members of ray family, it being understood that such payments are only paid to themselves individually, and that no husband, if any, or his creditors, are to have any control over such payment, directly or indirectly. It is further to be understood, should any of my daughters unmarried predecease her sisters or brother, her proportion falls to be divided equally amongst the surviving members of my family or progeny, to which they are to succeed on the same terms as they succeeded to their portions as members of my family, in which case the principal or stock from which they derive their income during their lifetime from my estate is not to be touched or interfered with till after their death, and only then when their children, if any, attain twenty-one years of age, when, should the executors see advisable, the amount effeiring to each child of the mother's share of the capital is to be paid; but as to this, its to be entirely at the discretion of the executors.” The only other clause of importance in this deed was the following—“further desire that the provisions herein made for my children are to be in place of what they might be entitled to from my means under my marriage-contract with my late spouse, and of all legal claims which might be competent to them.” In 1868 he added a codicil relative to the contingency of one of his daughters predeceasing him being married, and in 1876 another codicil relative to charitable bequests, neither of which was of importance. In 1878 he executed another codicil, which, so far as material to this case, was as follows:—“I, George Murray senior, above designed, considering that by the trust-disposition and settlement of my late brother, Colonel Hugh Murray of Househill, Nairn, he bequeathed to me a considerable sum of money, the greater part of which was the proceeds of the sale by him of the property of Househill, which he inherited from his ancestors: Considering that had not the said Hugh Murray so sold the said property I would have succeeded to it as his heir, and that my son Gustavus Aird Murray would on my decease succeed thereto as my heir-at-law; considering further, that it is only right and proper that my son should derive the benefit of a sum of money equal to the value of the said property at the time of my said brother's succession thereto, which value has been estimated by me at about ten thousand pounds sterling; and being desirous that the said sum should be invested in land for the benefit of my said son and his heirs, I do hereby give, convey, and make over the sum of ten thousand pounds stg. to my trustees, being those mentioned in the foregoing codicil, in trust for the following purposes, viz.—To be by them invested in landed property for behoof of the said Gustavus Aird Murray and his lineal heirs, the free annual proceeds or income therefrom to be payable to him during his life, and thereafter to his lineal heirs, and this in addition to the provisions already made in his favour as one of my children by the foregoing settlement; declaring that the said annual proceeds shall not be liable for the debts or attachable by the creditors of the said Gustavus Aird Murray or his heirs; declaring further, that in the event of the said Gustavus Aird Murray dying without leaving lawful issue, then it is my wish and desire that the heritable property in which the said sum of ten thousand pounds sterling may have been invested shall be sold, and the proceeds divided equally among my other children and their heirs according to the principle of my foregoing settlement.”

In 1880 the testamentary trustees raised this action of multiplepoinding to have the estate of Mr Murray judicially divided.

Claims were lodged for (1) Misses Williamina and Elizabeth Murray, the unmarried daughters. They declined to accept the provisions of the settlement, and elected to take their legal rights. Their mother being dead, and their brother Gustavus Aird Murray not being entitled to claim legitim without collation, while Mrs Campbell and Mrs Vass had both accepted the provisions in their marriage-contracts in lieu of legitim, they claimed one-half each of half the free moveable estate of their father, as also one-fifth share each of the £1000 which their father bound himself in his marriage-contract to secure to his children in fee, and one-fifth of the share of the executry of their grandfather Gustavus

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Aird, the capital of which by their father's marriage-contract was provided to his children in fee. (2) Gustavus Aird Murray and his minor children claimed for their respective interests of liferent and fee the sum of £10,000, being the sum to be invested for them by the testamentary trustees under the codicil of 1878. They also claimed one share of the £1000 provided in their father's marriage-contract, one share of the sum provided by Gustavus Aird under that contract, and a share of the fund in medio, after deducting the £10,000 left by the codicil and the two sums just mentioned, not less in amount than that to which any of the children of Mr Murray might be found entitled. Alternatively, in the event of its being held that the provisions to the truster's children in the trust-disposition and codicils must come in place of the provisions under Mr Murray's contract, or that children could not claim under the contract without forfeiting the benefit of the trust-disposition and codicils, they claimed the sum bequeathed by the codicil of 1878; and Gustavus Aird Murray, for himself, accepted the provisions of the settlement as in place of his rights under the marriage-contract or at common law. He claimed to be ranked on the fund, other than the sum of £10,000, to the extent of an equal share with the other children of the truster. This share he claimed to have instantly paid over to him in terms of the directions of his father's disposition and settlement. (3) Mrs Vass, besides a claim similar to that of her sisters and brother in the sum of £1000 and the fund derived from Gustavus Aird, claimed a share in one-half of her father's conquest in terms of his marriage-contract, and under her own marriage-contract she claimed to be entitled to a share of the remainder of her father's estate to the extent of a share equal in amount to that of any child of Mr Murray. (4) The children of Mrs Campbell made a claim similar to that for Mrs Vass. (5) The pursuers and real raisers (testamentary trustees) claimed to retain the sum of £10,000 conveyed to them for behoof of Gustavus Aird Murray and his children, or such portion of it as should remain after giving effect to any abatement inferred by other provisions made by the truster, for the purpose of investing it in landed property as declared by the testator. They also claimed to retain and administer the sum which might be found to belong to the children of Mrs Campbell, and to retain and administer the sum which might be found due to Mrs Vass and her children, and to retain a share of the fund in medio equal to that of any child of Mr Murray for behoof of the child or children of Miss Williamina should she marry and have children, but under deduction of the value of the provision forfeited by her in consequence of her claiming her legal rights. They made an exactly similar claim with regard to the interest of Miss Elizabeth Murray. Both these ladies were at the time when the multiplepoinding was raised about 40 years of age.

The Lord Ordinary pronounced this interlocutor:—“Finds that the sum received by the truster from the executry estate of the deceased Gustavus Aird is a debt due by the trust-estate, and that the amount thereof is divisible in equal shares among the children of the truster, the children of Sarah Campbell being entitled to their mother's share: Finds that the claimants Williamina and Elizabeth Murray are entitled to legitim, and that they are each entitled to one-third of the legitim fund, augmented by one-third to each of them of the value of such share of the truster's heritage as the claimant Gustavus Aird Murray is or may be entitled to under the truster's settlement: Finds that over and above their share of legitim they are each of them entitled to one-fifth of the sum of £1000 settled on the children of the marriage under the marriage-contract of their father and mother: Finds that in computing the legitim fund there shall be deducted the said sum of £1000; but finds that the other provisions made by the said marriage-contract, and the provisions made by the truster in the marriage-contracts of his daughters Sarah and Georgina, are not to be deducted: Finds that the claimant Georgina Vass and the claimant Gustavus Aird Murray, are each entitled to one-fifth of the said sum of £1000, and the children of the late Sarah Campbell to another fifth thereof, equally among them: Finds that the residue of the estate is divisible into five equal shares, of which one is to be applied in satisfaction of the provisions made by the truster in the marriage-contract of his daughter Sarah, and in his trust-settlement, in so far as consistent therewith; another in satisfaction of the provisions made by the truster in the marriage-contract of his daughter Georgina, and in his trust-settlement, in so far as consistent therewith; that another is to be applied pro tanto in implement of the legacy of £10,000 bequeathed by the truster in the codicil of 17th May 1878, the balance, if any, being payable to the claimant Gustavus Aird Murray; that another is to be held and administered by the trustees, the annual proceeds thereof during the lifetime of the said Williamina Murray to be paid to the parties entitled to the foregoing three-fifths, and the capital at her death to any child or children she may have, whom failing to the said parties entitled to the foresaid three-fifths; and that the remaining fifth is to be held and administered by the trustees, the annual proceeds thereof during the lifetime of the said Elizabeth Murray to be paid to the parties entitled to the foresaid three-fifths, and the capital at her death to any child or children she may have, whom failing to the said parties entitled to the foresaid three-fifths: Finds that the trustees are bound to pay over to such children of the late Sarah Campbell as have attained majprity the shares to which such children are respectively entitled, and that the trustees are entitled to exercise their discretion by paying over to the claimant Alexander Campbell, as administrator-in-law of his pupil and minor children, the shares to which such children are entitled: Finds that the trustees are bound to retain during the lifetime of Mrs Georgina Vass the share of residue falling under the marriage-contract between her and her husband Dr Vass, to be held and administered by said trustees for the respective behoofs of Dr Vass, Mrs Vass, and her child or children: And with these findings appoints the case to be put to the roll for further procedure: Finds all the parties entitled to expenses, so far as hitherto incurred, out of the fund in medio,” & c.

He added this note:—“It is not disputed that the claimants Williamina and Elizabeth Murray are entitled to legitim. The findings in the interlocutor applicable to this matter appear to be the necessary result.

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“But a question arose as to the amount of the legitim fund. The sum of £1000 settled by the truster on his children under his marriage-contract is a debt against his estate, and therefore must be deducted. The other provisions are of the nature of succession—protected succession, no doubt, but not less succession. If so, they do not, it is thought, form deductions.

The case of Nisbet, 1 Rob. App. 5, G. 4, was pleaded as an authority, to the effect that the claimants for legitim must impute the legitim pro tante in satisfaction of their claims under the marriage-contract; but it appears to the Lord Ordinary that this case is not regarded as an authority, and that he is not entitled to follow it. See Breadalbane, 2 Sh. M'L. 377, and Keith's Trs., 19 D. 1040.

In the opinion of the Lord Ordinary, the married daughters of the truster have under their marriage-contracts a right to benefit equally with their brother Gustavus Aird Murray in the trust-estate, and in obtaining this equality the benefit conferred on the children of the latter must, it is thought, be taken into account. For it seems to the Lord Ordinary that the meaning of the daughters' marriage-contracts is, that they and their children are to receive an equal share of their father's estate with any other child of his family.

It was argued that the equality must be fixed by reference to the sum which any child took as legitim. The Lord Ordinary is disposed to think that the better opinion is that the father only undertook for equality in so far as he had a power of disposal over his estate, or, in other words, over the dead's part.

Further, it seems to the Lord Ordinary that Mrs Vass and the children of Mrs Campbell are entitled to their share of the specific sum which the truster in his own marriage-contract bound himself to set apart. By these marriage-contracts the daughters discharge all claims competent to them from their father's estate—a discharge which it is thought excludes from any claim to the share of his estate provided to them under his own marriage-contract, but does not exclude them from the share of the sum which he was bound to place under a separate trust.

The Lord Ordinary understood that if the view which he has taken is correct, the residue would be exhausted at the lowest value which could be attached to the legacy of £10,000. The consequence seems that an equal division of the residue must be made. The claim of Williamina and Elizabeth Murray cannot affect any right competent to their children, and it seems to the Lord Ordinary that according to the true construction of the testator's settlement the shares which were given to them in liferent were given to their children in fee.

The rights of the claimant Gustavus Aird Murray as residuary legatee are postponed to the special legacy above mentioned. So far as he is concerned, the result must be that the legacy must be satisfied before he can take anything.”

Gustavus Aird Murray reclaimed.

In the Inner House the claimants other than the testamentary trustees concurred in stating that they desired an equal division of the estate among the children of Mr Murray, Mrs Campbell's children to take her share. The pursuers, the real raisers (testamentary trustees), however desired the judgment of the Court upon their claim.